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The Status of the Mueller Investigation

Now that the elections are over, attention will turn back to the investigation by Special Counsel Robert Mueller. Mueller’s team has been quiet since Labor Day, consistent with a longstanding Department of Justice policy to avoid major public steps in political cases when an election is less than two months away. Now Mueller is free to move forward, and there are a number of things still on his plate. He may feel a new sense of urgency, with the departure of Attorney General Jeff Sessions raising concerns about the future of Mueller’s probe.

Although they have done nothing publicly for the past two months, Mueller’s team has definitely been working behind the scenes. New indictments or reports could be ready to drop any day. We can’t know precisely what Mueller’s next steps will be, but here is a rundown of the issues that are still outstanding.

Russian “Collusion”

Mueller’s primary charge is to investigate Russian efforts to interfere with the 2016 presidential election and any potential involvement in that interference by members of the Trump campaign. This is often referred to as the investigation into Russian “collusion.” As I’ve written elsewhere (here and here, for example) the proper criminal law term for this allegation is not collusion but conspiracy – a partnership in crime. The federal conspiracy statute prohibits both conspiracies to defraud the United States and conspiracies to commit an offense against the United States. In the indictments he has released to date, Mueller has already made use of both of these theories.

Mueller indicted thirteen Russian nationals and three Russian companies last February for seeking to influence the election, largely through fake social media accounts. His lead charge was conspiracy to defraud the United States by impairing, obstructing, or defeating the lawful government functions of the Federal Election Commission, State Department, and Justice Department. In July, when he indicted a group of Russian intelligence operatives for hacking into Democratic computers and stealing emails, the lead charge was conspiracy to commit an offense against the United States, namely the Computer Fraud and Abuse Act.

The question that remains unanswered is whether any members of the Trump campaign were knowingly involved with the Russians in these activities. If so, they could be on the hook for the same kinds of conspiracy charges. In recent weeks it appears the special counsel has been particularly focused on former Trump advisor Roger Stone. There is some evidence, including from Stone’s own statements, that he may have had advance notice of the release of the stolen Democratic emails by Wikileaks in the days leading up to the election. Stone has also admitted being in contact with “Guccifer 2.0,” a social media persona created by Russian intelligence officials involved in the hacking and named in Mueller’s indictment. Whether all of this makes Stone criminally liable will depend entirely on the degree of his involvement. If he simply had advance notice that the email leaks were coming, that is unlikely to be criminal. On the other hand, if he knowingly worked with Russians concerning the release of those emails, that could implicate him in a conspiracy.

Stone is not alone as a potential target of Mueller’s probe into a possible conspiracy with the Russians. Other senior campaign officials, including the president himself, could be implicated. There have been dozens of documented contacts between Russians and members of the Trump campaign. With the recent guilty plea and cooperation of Paul Manafort, Trump’s former campaign manager, Mueller should have a new window into the scope of those contacts, including the infamous Trump Tower meeting in June 2016 (which Manafort attended) with Russians promising “dirt” on Hillary Clinton.

But even after thoroughly investigating the campaign’s contacts with Russians, the question will be whether any of it amounts to a crime. There is a wide swath of conduct here that could end up being stupid, clumsy, and unpatriotic, without being criminal. It’s entirely possible Mueller will conclude the inexperienced Trump campaign was flailing around and was willing to talk to anyone, including Russians, who were offering help, but never did anything that would amount to a conspiracy or other crime. In that case, the end result of Mueller’s investigation could be a report to the Attorney General rather than more indictments, and the implications would be largely political rather than criminal.

Obstruction of Justice

A second area of Mueller’s investigation has been whether president Trump may have obstructed justice through such actions as firing FBI director James Comey or encouraging Comey to drop the investigation of former national security advisor Michael Flynn. That portion of the investigation has seemed inactive for a while. The most likely explanation is that Mueller has largely completed his work on these allegations, which are less complicated and wide-ranging than the Russian conspiracy case. Probably the only remaining piece of the puzzle would be if Mueller could secure testimony from the president himself, and it’s unclear whether that is going to happen (see below).

Once again, a remaining question is whether the final product of Mueller’s work would be an indictment or a report to the attorney general. A report seems much more likely here, since Mueller will probably consider himself bound by the DOJ position that a sitting president cannot be indicted.

If you are interested in more analysis of the obstruction of justice issues surrounding the president, you can check out my posts here and here.

Trump attorney Rudy Giuliani

Testimony by the President

Also unresolved is whether president Trump will answer written questions from Mueller, agree to be interviewed by investigators, or even testify in the grand jury. Mueller and the president’s attorneys have been negotiating for the last year over a possible interview or written questions. Before Labor Day it appeared the most likely solution would be for the president to answer written questions, although his attorney Rudy Giuliani was claiming Trump would only answer questions about possible collusion (pre-election) and not about things he did after becoming president (which would include the obstruction allegations). There have been more recent reports that the president’s legal team has written answers ready and that the only question is when and under what terms they will provide them.

Trump probably will never agree to a face-to-face interview with Mueller. And Mueller doesn’t really require testimony from Trump, although it would be helpful – prosecutors bring cases all the time without having the opportunity to interview the target. Mueller could consider subpoenaing the president to the grand jury, but that would mean taking on a huge legal battle. And in the end, even if Mueller prevailed, the president might go in the grand jury and take the Fifth, providing no information. I suspect Mueller will conclude that subpoenaing the president is not worth the time and trouble. He will probably take what he can get with the written questions and leave it at that.

Cover-Up Crimes

I think additional indictments for cover-up crimes such as perjury or false statements are more likely than additional indictments for conspiring with Russians. Even if the underlying activity (like meeting with a Russian) was not itself criminal, lying about it to cover it up can be. There are a number of such allegations that Mueller needs to resolve. For example, during Congressional testimony at his confirmation hearing, former attorney general Jeff Sessions denied having any contacts with Russians during the campaign. When it later came out that he did in fact meet with the Russian ambassador, some claimed he had committed perjury – although I think that particular charge would be very hard to prove.

Falsifying government paperwork such as the SF-86, the application for a security clearance, can violate the false statements statute, 18 U.S.C. 1001. Jared Kushner, the president’s son-in-law, initially omitted a number of foreign contacts on his SF-86 and had to go back and amend it multiple times. If this was a deliberate concealment of Russian contacts, for example, that could be criminal. The same is true for Sessions, who also initially omitted Russian contacts on his SF-86.

Administration officials including Kushner and Trump’s son, Don Jr., have also testified before Congress. There are allegations that Don Jr. may have lied to Congress about foreign contacts during the campaign or whether he told his father about the June 2016 Trump Tower meeting. There are reports in just the past few days that Don Jr. has been telling friends he expects to be indicted soon. According to those reports, if there is such an indictment it will likely be for perjury.

Other Investigations

Investigations other than the Mueller probe might actually pose the greatest risk to the president and his business empire. Federal prosecutors in the Southern District of New York are pursuing a financial crimes investigation that was referred to them by Mueller as being outside of his original mandate. That investigation has already resulted in a guilty plea and cooperation agreement from Trump’s former personal attorney Michael Cohen. Prosecutors there have also immunized Allen Weisselberg, the Chief Financial Officer of the Trump Organization, who would be in a position to provide crucial financial information about the company. There have long been allegations about the Trump real estate empire and possible illegal activity. Prosecutors in New York could be looking at crimes such as international money laundering or even RICO.

Prosecutors in New York are also examining possible campaign finance violations involving the use of corporate funds to pay hush money to women; recall that Cohen, when pleading guilty to such violations, said in court that he did so at the president’s direction. A new report in the Wall Street Journal says prosecutors have evidence that Trump directly participated in those payoffs, which could implicate him in those crimes.

In addition, now that the Democrats have captured the majority in the House of Representatives, they are promising a long list of investigations to provide Congressional oversight that has been sorely lacking the past two years. One of the most significant could be an investigation by the House Intelligence Committee into the Russian interference with the election. Under the chairmanship of Republican Devin Nunes, that committee did little serious investigating and declined to subpoena key witnesses to testify. Under the leadership of Democrat Adam Schiff, however, we can expect to see a new and intensive inquiry.

Even if the Congressional investigation covers much of the same ground as the Mueller probe, it’s important because the Congressional investigation can readily be made public. Mueller’s work is protected by grand jury secrecy, and if he issues a report to the attorney general it is up to the attorney general whether to release it. I think it’s likely that any report by Mueller would ultimately be made public one way or another. But Congressional oversight is an excellent way to ensure that, regardless of what happens with the Mueller report, these issues get a public airing.

With Sessions departing there is a lot of uncertainty surrounding the Mueller investigation. Although he’s already achieved a great deal, he still has a lot on his plate. Hopefully he will be allowed to continue his work unimpeded.